US Supreme Court Will Hear Broadcasters’ Case

Aereo, a New York-based startup technology company financed by Barry Diller, utilizes warehouses full of tiny antennas to capture over-the-air television and then retransmit it over the Internet to its subscribers’ digital devices. It claims that from a legal perspective this service is no different than a user receiving the same signals through their own home digital antennas.

Broadcasters such as CBS, NBC, Fox, ABC, PBS and others, have sought to shut down Aereo, and its copycat services, which they view as an immediate threat to the broadcast television industry’s over-the-air programming royalty regime. They claim that Aereo infringes the “public performance” right in their programming, which is protected by copyright.

The broadcasters’ demand for a preliminary injunction against Aereo was denied by a New York federal court, which found no infringement of public performance rights. The Second Circuit affirmed the denial of relief, then turned down the broadcasters’ request for en banc rehearing.

But this month the United States Supreme Court granted the broadcasters’ petition for certiorari, setting the stage for what will be one of the Court’s most significant copyright law decisions since its landmark Sony Betamax case, which, incidentally, was decided 30 years ago this month.

We’ve written twice about the earlier stages of this case, and since then a Massachusetts federal judge refused to enjoin Aereo when it launched in Boston. On the strength of its legal victories, Aereo is raising millions in capital and rapidly expanding nationwide, with services now available in New York City, Boston, Atlanta, Miami, Salt Lake City, Houston, Dallas, Denver, Detroit and Baltimore, and 2014 launch plans in more than a dozen additional regions.

Despite the case’s high stakes, the broadcasters’ petition for certiorari framed a succinct question for the Court’s consideration: “Whether a company ‘publicly performs’ a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.” While most parties that win in lower courts oppose petitions for Supreme Court review, Aereo wants a decision declaring that its service is legal nationwide, and so agreed with the broadcasters that the Court’s intervention is warranted now to clarify the law, and set the course for future television and Internet technologies.

A variety of amici, including, among others, the cable companies, the NFL and MLB, have filed briefs with the Court as well. The media is following the case closely—a Google News search returns over 2,000 hits, ranging from legal commentators to traditional news outlets like The New York Times, the Washington Post and The Wall Street Journal, to technology news outlets like arstechnia, Engadget and CNet, and to magazines like The New Yorker, Forbes and The Hollywood Reporter.

As the proceedings unfold, we too, will keep watch, and provide updates accordingly.